Chapter 6
Looking at the agencies
Law enforcement menu: Introduction | Australian Federal Police | Australian Crime Commission | Australian Commission for Law Enforcement Integrity | CrimTrac
Introduction
The Commonwealth Ombudsman has a comprehensive role in oversight of Australian Government law enforcement agencies. The Ombudsman deals with complaints made against the Australian Federal Police (AFP) and the Australian Crime Commission (ACC), and reviews the complaint–handling arrangements of the AFP.
The Ombudsman also has statutory responsibility to inspect the records of law enforcement agencies and other agencies to ensure compliance with legislative requirements applying to selected law enforcement and regulatory activities. This work is described in the later section Monitoring and inspections in this chapter.
TopAustralian Federal Police
Complaints made by members of the public about the actions of members of the AFP remained an important part of the Ombudsman's law enforcement work. This year marked a focus on the Ombudsman's oversight of the AFP conduct and complaint system through the reviews conducted under Part V of the Australian Federal Police Act 1979 (AFP Act).
At the start of 2008–09 there were some cases that remained outstanding that were handled by the AFP and oversighted by the Ombudsman under the Complaints (Australian Federal Police) Act 1981 (Complaints Act). That Act was repealed in December 2006. At the end of 2008–09 three cases remain outstanding and will soon be completed.
Under the arrangements the Ombudsman's office applies to all agencies, most people with complaints about the AFP are asked to raise their complaint with the AFP first. If a person is dissatisfied with the process or the outcome of the AFP consideration and complains to the Ombudsman's office, we may investigate the complaint. Under the AFP Act the Ombudsman is notified by the AFP of complaints it receives that are categorised as serious conduct issues.
Review of complaint handling
The Ombudsman has a responsibility under s 40XA of the AFP Act to review the administration of the AFP's handling of complaints through inspection of AFP records, including records of the handling of complaints about ACT Policing. Generally two reviews are conducted each year. The Ombudsman reports to the Commonwealth Parliament annually, commenting on the adequacy and comprehensiveness of the AFP's dealing with conduct and practices issues as well as its handling of any inquiries ordered by the federal minister.
The most recent report to the Commonwealth Parliament, covering review activities conducted during 2007–08, was tabled in November 2008. The report noted that the AFP had made extensive preparations for its new complaint–handling system and had a genuine commitment to making it work. Nevertheless, room for improvement was identified in relation to the:
- technology used by the AFP for recording, managing and tracking complaints
- timeliness of the AFP's handling of minor complaints, which was consistently well below the benchmarks that the AFP had set itself
- need for the AFP to make use of complaint information to improve practices and procedures on an organisational basis
- AFP attitude to, and dealings with, complainants.
During the reporting period the office conducted inspections to review the AFP's administration of complaint handling in September–October 2008 and March 2009. The report arising from the first review was finalised in April 2009 and the report arising from the second review should be finalised in the first quarter of 2009–10.
This year's reviews noted a pleasing improvement in most areas of AFP complaint handling from the previous years. In particular, the AFP provided resources to upgrade its information technology system for recording and managing complaints, which is expected to result in better functionality and reporting capabilities. Timeliness in the handling of minor complaints improved. The AFP also improved its practices and procedures for dealing with complainants. Further details on these reviews will be contained in the 2009 report to Parliament.
Complaints received
During 2008–09 we received 351 approaches and complaints about the AFP. The complaints related to the work of the AFP in national and international operations, as well as the AFP's community policing function in the ACT. The most common issues raised included:
- inappropriate action, such as excessive delay, failure to act or inadequate investigation
- minor misconduct, including harassment/ bullying, inappropriate behaviour and traffic matters
- customer service, such as discourtesy, inadequate service or failure to provide advice
- serious misconduct, for example breach of Commisioner's Orders or code of conduct, bribery or intimidation
- use of force, such as excessive force or discharge of a firearm.
Half of the approaches and complaints were about AFP members acting in their ACT Policing role. Our work in this area is described in more detail in the ACT Ombudsman Annual Report 2008–2009, available at www.ombudsman.act.gov.au.
Complaints finalised
Section 38 of the Complaints Act, now repealed, requires a report on the operations of the Ombudsman under that Act during the year ended 30 June 2009. This section of the report deals with those matters.
No new complaints under the Complaints Act were received during 2008–09. We completed the oversight of 52 complaints containing 113 complaint issues.
Of the 113 issues oversighted, 11 had been referred to the AFP's workplace resolution or conciliation process. Under the Complaints Act this process allowed members of the public to provide feedback about their interaction with police; provided AFP members with the opportunity to clarify misunderstandings; and facilitated a more timely and flexible response to complaint issues than did formal investigation.
Conciliation was successful in two of these cases, involving three issues. We decided that investigation was not warranted in respect of one issue after considering the AFP's initial evaluation of the complaint.
The AFP investigated 109 issues (including seven where conciliation had been attempted), which were then reviewed by the Ombudsman's office. The Ombudsman considered the 109 issues and requested further investigation by the AFP for 24 issues. The Ombudsman accepted the AFP's findings in the majority of issues. The Ombudsman's office investigated three complaints comprising six issues. We made four recommendations on four issues in two cases. The AFP agreed with two recommendations in one case and disagreed with the recommendations in the other case. In the third case, our investigation determined the AFP investigation and outcomes were satisfactory.
The case studies Conflict of interest and Excessive force describe the outcome of two investigations Ombudsman office staff carried out in relation to complaints made under the Complaints Act.
Conflict of interest
This special investigation was conducted under the Complaints Act to examine a complaint made by an AFP member regarding the conduct of a Professional Standards (PRS) interview.
Complainant E was alleged to have contacted another AFP member F inappropriately via email and text messages. When PRS interviewed E, E alleged that the PRS interviewer G was biased and had a conflict of interest. At the interview G told E that G was a very good friend of the AFP member F who had made the initial allegation of inappropriate communication.
Our investigation report found that G had a real or perceived conflict of interest in relation to complainant E. The officers involved in the interview did not have an adequate appreciation of what constituted such a conflict, nor did they deal with it appropriately. Our investigation report concluded that AFP procedures and guidelines in relation to conflict of interest were not sufficient. We recommended that the AFP should develop written procedures and detailed guidance for AFP members to assist them in identifying and avoiding conflicts of interest in carrying out their duties. The Ombudsman had made a similar recommendation in relation to another case in the previous year.
The AFP Commissioner responded in May 2009 endorsing the report's recommendations and advising that the AFP is drafting a national guideline on conflict of interest, and that recognising and treating conflicts of interest were an aspect of the AFP's values education. The Ombudsman was advised that the Deputy Commissioners and the Chief Operating Officer had, as a consequence, conducted presentations on AFP values in all AFP locations.
Excessive force
Mr H complained that the AFP used excessive force to arrest him. He was injured and sprayed with capsicum spray. Mr H also complained about the theft of a small sum of money, and that the AFP had released information about his arrest to the Australian Defence Force (ADF) and were rude to him.
The AFP had approached Mr H and questioned him about the welfare of his friend. The police reported that Mr H was belligerent and uncooperative and they attempted to place him in protective custody. The police used force including capsicum spray.
The AFP investigation found that the release of information to the ADF was inappropriate and addressed the issue. The remaining complaints of excessive use of force, theft and rudeness were not substantiated.
Ombudsman office staff investigated the complaint by Mr H. We examined the AFP's investigation of the complaint and the transcripts for the taped records of conversations with the complainant and the AFP members involved in his arrest. We also examined closed circuit television footage of the ACT City Watchhouse which showed the amount of money Mr H presented to police at the time of his arrest was incorrectly counted and that no theft had occurred.
The Ombudsman was satisfied that the evidence supported the AFP's findings and concluded that the actions of the AFP were not unreasonable.
We finalised 354 complaints about the AFP under the Ombudsman Act. In 186 cases we referred the complainant to the AFP on the basis that a complainant should contact the relevant agency before asking the Ombudsman to conduct an investigation. We referred the complainant to other agencies and oversight bodies for a small number of complaints and treated some as information enquiries. We completed investigations of 39 complaints. Some investigations, commenced during the period, are yet to be completed. The case study Wrong interpretation shows the outcome from one complaint we investigated under the Ombudsman Act.
Wrong interpretation
Ms J complained that when she went to the ACT City Watchhouse to see her son who had been detained earlier that day, she was denied access to him.
Our investigation established that when her son was admitted, he was asked the question 'If anyone should call here whilst you are in custody saying that they are a friend of yours, a member of your family or a legal practitioner acting on your behalf, do you have any objections to them being told you are here?' The answer given was 'Yes, that's fine'. The Constable recorded the answer to the question as 'Yes'. This then marked the record with an indication that he had requested privacy. When Ms J asked to visit her son, the duty officer noted that her son had asked for privacy and refused her request.
When we investigated the complaint, the AFP advised us that the question relating to privacy had been reworded. The question now asked is 'If anyone calls the Watchhouse, can we tell them you are here?' This question appears to be less open to misinterpretation.
Overall, 90% of all AFP approaches and complaints under the Ombudsman Act were finalised within three months of receipt and 94% were finalised within six months. This reflects the large number of complaints that were dealt with by telephone.
Twenty complaints or 6% of AFP complaints under the Ombudsman Act took longer than six months to resolve.
Own motion investigations
In our 2007–08 annual report we noted that a joint AFP/Ombudsman review of ACT Policing's Watchhouse operations had been released in June 2007 and that a joint steering committee was established to follow up the recommendations.
The Ombudsman wrote to the AFP Commissioner in August 2008 following the finalisation of the steering committee's report on the implementation of the review's recommendations. The Ombudsman referred to three areas that required attention—governance, detainee health and wellbeing, and use of force. The Ombudsman noted he would continue to closely monitor complaints about Watchhouse operations. The Chief Police Officer of the ACT undertook to conduct an ACT Policing review of the implementation in approximately six months.
In March 2009 the AFP provided the Ombudsman with the Report to ACT Chief Police Officer on Implementation of Recommendations of the June 2007 Review of ACT Policing's [Regional Watchhouse] Operations. The report demonstrated a thorough acquittal of the recommendations of the Watchhouse review. The issues raised by the Ombudsman have either been addressed or are in the final stages of completion. Training in appropriate use of force in the Watchhouse has been implemented and amendments to Commissioner's Order 3 are in train. One issue outstanding is the removal of hanging points in the Watchhouse, for which ACT Government funding is being sought.
We will continue to monitor Watchhouse practices and conduct in the context of addressing complaints. The Watchhouse review is available on our website at www.ombudsman.gov.au.
In October 2008 the Ombudsman completed an own motion investigation on the AFP's use of powers under the Intoxicated People (Care and Protection) Act 1994 (ACT). The Ombudsman made a number of recommendations to improve training, procedures and recordkeeping in relation to dealing with intoxicated people. The report is available on our website.
In August 2008 the Ombudsman published an abridged report of an investigation Australian Federal Police: Engagement of consultant (Report No. 8/2008). The full investigation report was not published due to security considerations. The investigation centred on an allegation of a perceived conflict of interest in the engagement of a consultant, due to a personal relationship between the consultant and a senior officer of the AFP.
The investigation found that there was no evidence of improper influence by the senior officer. However, there was a potential conflict of interest that was not well managed. The Ombudsman recommended that the AFP review its procurement guidelines, that the AFP review certain practices of the AFP procurement policy area, and that the AFP develop written procedures and detailed guidance for AFP members to assist them in identifying and avoiding conflicts of interest in carrying out their duties.
The AFP accepted the recommendations.
Following a complaint by a member of the public that a senior AFP officer misused his authority to send AFP officers to intervene in a civil dispute, the Ombudsman decided to conduct an own motion investigation into the complaint and the way the AFP handled it. The investigation is expected to be finalised early in 2009–10.
Australian Crime Commission
Complaints about the ACC are managed under the Ombudsman Act. The ACC also notifies the Ombudsman's office about significant matters, allowing us to consider whether further investigation by Ombudsman staff is warranted. In 2008–09 we received four approaches and complaints about the ACC and finalised five approaches and complaints.
The Ombudsman commenced an own motion investigation into the gathering, storing and dissemination of information by the ACC. The investigation is expected to be finalised early in 2009–10.
Australian Commission for Law Enforcement Integrity
The Ombudsman can refer allegations of corruption against law enforcement officers to the Integrity Commissioner. No allegations were referred during 2008–09; the Integrity Commissioner finalised one matter referred in 2007–08.
CrimTrac
In June and July 2008 the Ombudsman's Office contributed to a CrimTrac privacy impact assessment on a proposal for an automatic number plate recognition system. The assessment was conducted by a consultant (a previous Privacy Commissioner) as part of the consideration of a proposed CrimTrac project.
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